LAW OFFICE OF ROBERT K. LINCOLN, P.A.

Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Yes, temporary moratoria are not takings - even if you have a development agreement

The 1st DCA just released this opinion, which overturned a circuit court finding of a temporary taking when development permits were held up due to an injunction based on Leon County's failure to implement stormwater policies, and that the existence or breach of a Development Agreement didn't create compensable damages.

Lots of interesting things here.
1) Ok, you're not likely to get temporary takings damages based on a moratorium when your property goes from 600,000 to over 1,000,000 in value (in 3 years) during the moratorium

2) You're also unlikely to get any sympathy for a temporary regulatory delay (ala Lake Tahoe) when the moratorium is based on an injunction against the issuance of devleopment orders based on a planned need for (but failure to provide for) adequate stormwater facilities and infrastructure.

3) The existence of a development agreement - and claims of the breach of it - aren't going to hold up in the face of a public-interest serving moratorium because a contract that becomes impractical or impossible due to a government order isn't enforceable; and that's without even getting into whether it would be enforceable under the Morgran Co v Orange County case (aka the Development Agreement Act doesn't trump the policy against contracting away police powers).

4) It also looks to me (and there's not enough detail on the original suit that led to the injunction for me to know) that this may be the first instance where we see 163.3215 used as a sword rather than a shield - that is, to proactively prevent the future issuance of building permits where it's clear that they would be inconsistent with the Comprehensive Plan rather than waiting until after the DO issues. [read the statute again - while you only have 30 days after a DO issues to challenge, 3215 actually provides for injunctive relief to prevent the issuance of an inconsistent DO]

I'm sure that some gov't attorneys out there are breathing a (probably justified) sigh of relief.

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Hiring an attorney is an important decision that should not be based solely upon advertisements. Before you decide, ask and I will send you free written information about my qualifications and experience. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances, or to establish an attorney-client relationship between us.